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Trees Along Realty Lines: Involve Mutual Rights and Duties Between Property Owners
Question: How can I resolve a dispute over a boundary tree with my neighbour?
Answer: If you find yourself in a disagreement over a boundary tree, it's important to remember that such trees are commonly considered co-owned by both property owners as stipulated in the Forestry Act R.S.O. 1990, c. F.26, section 10(2). While you may reach an amicable solution directly, involving legal representation can be crucial for navigating disputes effectively. Mole Legal Services can assist you in understanding your rights and obligations regarding boundary trees, ensuring a fair resolution tailored to your situation.
Neighbours as Co-Owners of Boundary Trees
Boundary trees are trees that are upon a property line and are therefore jointly owned by the property owners who share the property line. Unfortunately, boundary trees, sometimes also called border trees, often become a source of contention between neighbours who disagree on how to manage the tree. In some circumstances, the neighbours are able to come to a mutually satisfying solution; however, if the neighbours are unable to agree, then it may become necessary to seek legal advice and perhaps seek a decision about the removal or maintenance of the tree from a court.
The Law
Neighbour disputes involving trees often involve debate over the ownership, and therefore decision-making power, of a tree. In circumstances where a tree trunk rests upon the property line, the tree is known as a boundary tree or border tree as is deemed jointly owned by the respective property owners. The joint ownership of a boundary tree is statutorily prescribed as per the Forestry Act, R.S.O. 1990, c. F.26, which explicitly states:
Trees common property
10 (2) Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.
Interestingly, the Forestry Act refers to the trunk of a tree being upon the property line without defining what actually is the trunk of a tree. The definition of what constitutes as the trunk of a tree was reviewed and established within the case of Hartley v. Cunningham, et al, 2013 ONSC 2929., which was upheld by the Court of Appeal in Hartley v. Cunningham, 2013 ONCA 759, wherein each it was respectively stated:
[1] At issue in this matter is the right of the respondents to assert an ownership right to a Norway Maple Tree that the respondents assert straddles the property line between the applicant’s and the respondents’ back yards. More specifically, the issue is whether the respondents enjoy an ownership right to the tree at all and therefore whether they can be heard to object to the applicant’s intention to have the tree felled.
[2] The applicant seeks a declaration that she is the sole owner of the tree.
[3] The parties agree that the applicable legislation is the Forestry Act[1] which is silent on any definition of what a tree trunk is but which provides that every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.[2]
[4] It is common ground that if the tree is co-owned by the applicant and the respondents, the latter must consent to the removal of the tree, a consent that the respondents are not prepared to provide.
[5] The applicant insists that the focus of any consideration of whether or where a tree trunk crosses a boundary line must be directed only at the level where the trunk emerges through the ground. The respondents submit that a tree, indeed this very tree, is a boundary tree when its trunk crosses the boundary line above its roots and beneath its leaf canopy.
[6] The respondents also dispute the applicant’s assertion that the tree trunk is situate only on her property at ground level. They insist that the level of the ground adjacent to a tree is a variable factor dependent upon how fill is placed against the trunk. A more precise point of measure and one consistently applicable to all trees would require the base of the tree to be measured at the point at which the trunk meets the roots of the tree. A measurement taken by respondents’ expert at that point demonstrates that the trunk at root the ball is on the boundary and this tree is a boundary tree on that basis.
[7] The applicant has asserted that the tree is unhealthy and that supports her wish to have it taken down. She has not adduced evidence to support that assertion but the respondents have marshaled and presented evidence to the contrary. The respondent’s expert arborist has inspected the tree and found it to exhibit very good vigour and vitality and that it is in good overall health.
[8] Upon the uncontested expert evidence before me, I conclude that the tree is in a reasonably safe condition and can be retained in that condition by application of a dynamic tethering system to its three main stems, a procedure the respondents have offered to pay for but which the applicant had declined to accept. As such it is not a distinction without difference to say that the applicant’s wish to remove the tree falls short of a need to do so.
[9] Mr. Radecki, one of the respondents’ experts, provided evidence in this matter. He explained that the applicant’s position that tree trunk position should be measured at ground soil level is arbitrary and although some municipalities use that measurement location for their purposes and while he is aware of competing definitions of boundary trees, he rejects them as inconsistent with the conventional wisdom. He stated, and I accept his reasoning, that: a great deal of caution must be exercised when measuring trees at ground level. This is because establishing the base of the tree is often difficult and controversial. The base of the tree contains the root flare which may be broader than the trunk itself and the trunk of the tree at ground level is ambiguous and not necessarily a useful measure of where the tree trunk transfers into the root system (the true base of the tree). Focusing solely on the tree at ground level can lead to arbitrary results.
[10] The respondents retained two other experts. Mr. Van Wassenaer is a certified arborist with twenty years of experience. He too opines that arborists determine whether a tree is a boundary tree by examining whether any part of the trunk crosses the boundary line. He maintains that municipal by-laws to the contrary notwithstanding, the conventional wisdom within the field of arboriculture is consistent with his stated view.
[11] From the perspective of a landscape architect, Ms. Speigel concludes likewise that any part of the trunk over the boundary line makes the tree a boundary tree.
[12] The opinions of the experts are helpful to better understand the anatomy and development of a growing tree and the extent that its growth and location impact the experts in their involvement with the tree as arborists, foresters or landscape architects. These sources also assist in understanding whether particular interpretations urged on the court by the parties can lead to absurdities. I do not rely on the opinions of experts to the extent that they might appear to address the ultimate issue of my interpretation of the meaning of the relevant section of the legislation.
[13] The expert evidence accords with a common sense reading of the word “trunk” and with its dictionary meaning[3] as well.
[14] In my view, the meaning of the words in section 10(2) is clear. It includes within the ambit of the meaning of a tree trunk growing on a boundary line the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage. In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs.
[15] I accept the respondents’ evidence and submissions that to interpret the legislation otherwise may lead to anomalous results where a property owner chooses to add soil or other materials to the base of the tree to artificially raise the soil up and away from the roots, perhaps to a portion of the trunk, not on the boundary line.
[16] Even upon the applicant’s submission, however, that it is the base of the tree trunk that is determinative of tree ownership, the expert evidence establishes that this tree measured against the property boundary at its base, where the trunk meets the roots, is located on the boundary line. Therefore the evidence supports the respondents’ entitlement to co-ownership of this tree in any event.
[17] Beyond this though, the legislation in effect now no longer asks for evidence establishing who planted the tree, when and where with relation to the boundary line and whether it was planted with the consent of adjacent property owners.[4] The legislature streamlined the provisions in the previous legislation to eliminate these historical components so often difficult to prove. The object of the revision and consolidation of forest husbandry legislation leading to the enactment of the Forestry Act was to eliminate red tape; it succeeded in bringing boundary tree ownership determinations into the present and facilitates proof of ownership by readily ascertainable factual information and mathematical precision.
[18] The legislation addresses the present time and focuses on where the tree trunk is “growing”. In circumstances where the trunk is growing on the boundary line, co-ownership follows, no matter who planted the tree. This is important in the instant case given that none of the parties knows who planted this tree. There is no evidence suggesting it was planted with the consent of adjoining owners at the time and there is some evidence suggesting it may not have been planted at all but grew from a seed blown by the wind.
[2] The Forestry Act provides in s. 10(2): "Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands." There is no definition of "trunk" in the legislation.
[3] The application judge considered the evidence before him, including the evidence of the expert witnesses, and concluded that the word "trunk" should be given its ordinary dictionary meaning. It is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. There are no words in the statute that limit the meaning to the "trunk" at ground level. He commented that the point at which the trunk emerges from the soil would be lead to arbitrariness because soil can be added to the base of the tree to change the point of emergence. On the basis of the evidence before him, the application judge concluded that the tree was a boundary tree and that the appellant and the respondents are co-owners.
[4] We agree with the application judge's interpretation of s. 10(2) of the Forestry Act and his conclusion dismissing the appellant's application to be declared the sole owner of the tree.
Where a boundary tree exists, decisions as may affect the boundary tree generally require a mutual agreement between the jointly tree owning neighbours. A neighbour that makes decisions without consultation with, and agreement from, a joint owner of a tree may become subjected to litigation seeking compensation for wrongful trespass. With this said, and despite the Hartley rulings, courts have permitted a neighbour to make unilateral self-help decisions to remove a boundary tree for the purpose of abating a nuisance in circumstances where doing so is reasonably necessary. Such a view is provided within the cases of Freedman v. Cooper, 2015 ONSC 1373, and Davis v. Sutton, 2017 ONSC 2277, wherein each it was respectively stated:
[36] Under the law of nuisance, property owners are entitled to resort to self-help remedies to eliminate a continuing nuisance caused by roots and branches from trees, or the court may order that the nuisance be abated or removed: Yates v. Fedirchuk, [2011] O.J. No. 4718, 2011 ONSC 5549 (S.C.J.), at para. 73; Kiessling v. Varga, [2002] B.C.J. No. 142, 2002 BCSC 90; Glashutter v. Bell, [2001] B.C.J. No. 2587, 2001 BCSC 1581; Hodgins v. Toronto (City), [1892] O.J. No. 59, 19 O.A.R. 537 (C.A.), at para. 64; Guinan v. Ottawa (City), supra.
[37] In Black v. Zager, 1982 CanLII 4025 (MB KB), [1982] M.J. No. 17, 18 Man. R. (2d) 22 (Q.B.), Chief Justice Dewar stated, at paras. 9-11:
It is common ground that an owner of land on which a tree grows is liable in nuisance at the suit of an owner of adjoining land if the roots or branches encroach on the adjoining land and cause damage. . . .
The tree roots in this case constitute an actionable nuisance and, while they remain, the likelihood is that the nuisance will be a continuing one.
The evidence establishes that substantial damage has been suffered by the plaintiff and in my view he is entitled to an order enjoining the defendants to abate the nuisance and remove the offending roots from plaintiff's land.
[38] Applying this law to the circumstances of the case at bar, both Ms. Freedman and Mr. Cooper had been put on notice that the boundary tree, which had already caused damage to a neighbour's property, presents a continuing danger. Ms. Freedman did the responsible thing and she took steps to abate the patent nuisance. She offered to do so at her own expense, even though as a co-owner of the boundary tree, Mr. Cooper has a shared responsibility.
[39] Because the danger posed by this particular boundary tree is no longer inherent but is rather a patent risk, it was no answer for Mr. Cooper to say that all trees pose inherent dangers. Mr. Cooper was obliged as a matter of law to take steps to abate the nuisance. When he failed to do so, he became liable to have the court to direct him to do so.
[60] The Appellant goes on to submit that the Respondent failed to properly abate the nuisance, an issue which the Appellant submits the learned trial judge failed to consider and decide. The Appellant submits that the Respondent could only cut the boundary trees without consent if there was an emergency, damage has occurred, the risk of harm was imminent and on notice.
[61] The Appellant relies on the above principles set out in Watson v. Charlton, 2016 BCSC 664 but the Appellant fails to recognize that the court in Watson did not make a decision on the issue of abatement since the parties had not had an opportunity to make submissions on the issue. See para 237 Watson.
[62] The Appellant also relies on Freedman and Legris. In Freedman, Justice Perell specifically found that self-help was a remedy available to abate the nuisance. See Freedman para 36. In Legris, there was no nuisance so that the issue of abating a nuisance was not decided by the court. See Legris para 17.
[63] The difficulty is the Appellant decided that he would not consent to the removal or trimming of any of the cedars. The City would not prevent the Respondent from cutting the trees. The Appellant would not consent. In these circumstances, the Respondent had no choice but to proceed to cut the boundary trees in the fashion that he did.
[64] If the court subsequently found that the boundary trees were not a nuisance, the Respondent would be liable to the Appellant for damages. If the court subsequently found that the boundary trees were a nuisance and the Appellant unreasonably withheld his consent, the Respondent would have no liability for cutting the trees. Why take the risk? The expense and years to get the matter to trial during which time the Respondent would be prevented from using and enjoying his property. This court cannot fault the Respondent from taking the unilateral actions he did in this case.
[65] Paragraph 36 of Freedman is a complete answer to this submission.
[66] Sutton attempted to be reasonable and cooperative to obtain the consent of Davis to cut the cedars which infringed on his ability to erect a fence at or near the lot line. The learned trial judge found that Davis was unreasonable and would not consent under any circumstances. In these circumstances, Davis’ unreasonable position would have resulted in the following options to Sutton:
a) to construct a fence 6-8 feet inside the lot line; or
b) not construct a fence at all.
[67] The Appellant submits that the learned trial judge erred in finding that the Respondent's solution to cut the trees as he did was “his only solution". This court rejects that submission. The Appellant refused to consent; the trees were a nuisance. Essentially, the position taken by Davis makes little sense since it would permit the joint owner of a boundary tree to irrationally and unreasonably prevent the adjoining property owner from abating a nuisance.
[68] Davis submits that Sutton could have proceeded to obtain the consent of the court in legal proceedings. The difficulty with this suggestion is that essentially it would take years for the matter to get to trial, Sutton’s enjoyment and use of his property would have been significantly interfered with until trial, and as found by the trial judge, unnecessarily so.
Interestingly, Freedman suggests that the right to unilaterally decide to remove a jointly owned tree arose when the tree became a patent risk rather than merely an inherent risk and Davis suggests that unilateral decision to removal jointly owned trees to make way for erection of a fence may occur when a joint owner unreasonably refuses to provide consent.
Conclusion
When a tree is located upon a property line, the tree becomes known as a boundary tree which is also sometimes called a border tree. A boundary tree is jointly owned by the owners of the respective properties. The joint owners share the legal rights and legal duties, including the making of decisions, regarding the tree.